There is nothing new about congressional congressional gridlock writes Josh Blackman:
It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives…
While many may like the results of the president’s executive actions, acquiescence to his claims of authority sets a dangerous precedent for the separation of powers. Each president builds on the power of his predecessor, in a one-way ratchet of executive authority. And the threat transcends partisan interest. Imagine if President Mitt Romney, relying on the same sort of power that President Obama has claimed, indefinitely delayed implementation of Obamacare’s mandates because he could not overcome a Senate filibuster blocking repeal of the law. Or if President Rand Paul, unable to pass a tax reform, decides not to enforce the corporate income tax against Fortune 500 companies, citing prosecutorial discretion similar to that Obama relied on with DACA. Or if President Hillary Clinton, unsuccessful in convincing Congress to pass welfare reform, decides to waive the requirement that welfare recipients participate in the work force in order to receive benefits. Or if President Ted Cruz, in keeping with President Obama’s decision not to enforce controlled-substance laws in two states, unilaterally decides not to prosecute Texas businesses for violations of environmental laws. Or if President Elizabeth Warren decides that the government will no longer collect any interest on federally guaranteed student loans. Or, indeed, if President George W. Bush, when faced with the defeat of his Social Security plan, had instructed the Treasury Department to let workers deposit payroll taxes directly into individual retirement accounts.
The author argues that presidents have two choices when they can’t move Congress: advance a more moderate compromise proposal that can get past the political roadblock or table the issue (and perhaps campaign on it). He also points out SCOTUS ruled 9-0 in NLRB v. Noel Canning to refute the president’s redefinition of the separation of powers.
Chief Justice Roberts put it bluntly: “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the president submits.” Justice Kagan said that the NLRB’s going “dark” was directly “a result of congressional refusal.” Justice Breyer added, “I can’t find anything that says the purpose of [the recess-appointments clause] has anything at all to do with political fights between Congress and the president.” Ultimately, all nine justices emphatically rejected the president’s position.
Writing for the majority, Justice Breyer made clear that “political opposition in the Senate would not qualify as an unusual circumstance” to justify the president’s making recess appointments during the pro forma sessions. Breyer stressed that this was a “political problem, not a constitutional problem.” Justice Scalia made the point forcefully in a concurring opinion, writing that the Obama administration “asked us to view the recess-appointment power as a ‘safety valve’ against Senatorial ‘intransigence.’” Scalia charged that this was a dangerous argument that translated a political dilemma into a constitutional crisis.